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HQ 955991

February 17, 1995

CLA-2 CO:R:F 955991 ALS


TARIFF NO.: 3921.19.0000

District Director of Customs
1 La Puntilla Street, Room 203
San Juan, PR 00901

RE: Request for Further Review of Protest 4909-93-100132, Dated December 22, 1993, Concerning Dry Nylon Media

Dear Mr. Robles:

This ruling is on a protest that was filed against your decision of December 22, 1993, regarding a series of entries covering the subject product.


The product under consideration, known as Ultipor N66, is referred to as a dry nylon media, a microporous filter membrane which is imported as roll goods. Subsequent to importation it is made up into disposable filter elements used to filter such products as pharmaceuticals, beer, water, intravenous solutions, etc.. The product was originally classified as noncellular plastic based on a Customs laboratory analysis. A 100 power examination of the product failed to reveal any cells in the product. The invoice from a related party indicated that the product was noncellular. The product is prepared by the phase inversion process from a nylon 66 polymer and a nonwoven polyester textile. Customs laboratory examination under 100X magnification confirmed that the product was a nonwoven synthetic textile material (polyester) as a support, weighing 0.0067 kg/m2. It was found to be composed of 35.44% and plastic 64.56%, by weight. No cells were observed. The sample furnished appears to be thin, solid white sheet of material with no apparent openings or voids. However, pictures of the product at 500X (cross section) and 2000X (top surface) magnification, furnished by the importer, reveal a microporous membrane.


Is the product, a micorporous plastic, classifiable as a cellular plastic?


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

We note that the importer indicates that the product is produced by the phase inversion process as that process is described in Ullmann's Encyclopedia of Industrial Chemistry, Fifth Edition. Such publication states that in this process "a polymer is dissolved in an appropriate solvent and spread as a 20-200 æm-thick film on a film, plate, belt or, as in the present case, fabric support. A precipitation agent such as water is added to this liquid film, causing separation of the homogeneous polymer solution into two phases - a solid polymer-rich phase and a liquid solid-rich phase... The precipitated polymer forms a porous structure containing a network of fairly uniform pores... Symmetric microporous membranes have been prepared from nylon 66..." The Encyclopedia of Polymer Science and Engineering, Mark, Unit 311101007, uses the term "phase separation technique" in describing such process which it also lists in the reference under the "Foamed Plastics" chapter in the "Other Processes" section.

Historically, we have not considered microporous plastics as meeting the definition of cellular plastics. Also, the need for high power magnification to ascertain the presents of cells could cause a significant administrative problem. In this regard, we note that normally a product is subjected to 100X magnification to determine whether cells are present. In this case, the existence of pores or voids was only visible when the cross section was submitted to 500X and the top surface was submitted to 2000X on the electron microscope.

We, however, noted that the Harmonized System Committee, at its 12th session in July 1993, amended Chapter 39 of the Explanatory Notes to Harmonized System (EN) regarding cellular - 3 -
plastics. Such EN, which represents the view of the international classification experts, now provides, as herein pertinent:

Cellular plastics are plastics having many cells (either open, closed or both), dispersed throughout their mass. They include foam plastics, expanded plastics and microporous or microcellular plastics. They may be either flexible or rigid.

While the EN is not binding in the U.S. and they are merely used for guidance in a similar manner to legislative history, while we and another country expressed concern about the above modification during the Harmonized System Committee sessions and although most, if not all, of the entries covered by the subject protest were filed and accepted prior to the amendment of the EN, the classification suggested by the importer would not appear to be inappropriate. Both the EN and the technical references previously noted support the conclusion the instant microporous plastic should be classified as a cellular plastic.


Microporous plastics in roll form produced by the phase inversion process or phase separation technique, which produces a porous structure containing a network of fairly uniform pores, which are to be made up into disposable filter elements to filter various products, should be classified in subheading 3921.19.0000, HTSUSA, as Other plates, sheets, film, foil and strip, of plastics, Cellular, Of other plastics. Products so classified are subject to a general rate of duty of 6.6 percent ad valorem.

Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed you are instructed to allow the protest in full.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and - 4 - Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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